The First Amendment Tax

The government learned it doesn't need to ban speech; it can just make it expensive.

In January, two detectives from the Miami Beach Police Department knocked on the door of a woman named Raquel Pacheco. She had posted a Facebook comment criticizing the mayor. The detectives showed her the post, asked if she had written it, and told her she should refrain from posting things like that, because someone might agree with her.

Pacheco was neither arrested nor charged with anything. She has since filed a federal lawsuit, and she will probably win, because what happened to her is the kind of First Amendment violation our courts immediately recognize. A police officer told a citizen to stop engaging in protected political speech; that is traceable and provable, with clear precedents guiding courts on the boundaries of First Amendment law.

Over the past year, a few prestigious law firms in the country were targeted by executive orders that stripped their employees of security clearances and barred them from federal buildings. Their offense was representing clients the president disliked or hiring lawyers who had once worked on investigations of him. The orders were struck down as flagrantly unconstitutional, and the Justice Department recently dropped its appeals.

Meanwhile, some law firms decided, several even before any executive order against them was issued, to provide millions of dollars in free legal services for causes the administration supported and while making other concessions. They paid because the threat was credible enough that paying seemed like a more rational choice than fighting.

Last month, the Federal Communications Commission (FCC) ordered Disney to file early license renewal applications for all of its ABC stations, three years ahead of schedule, and days after President Trump called for the firing of late night host Jimmy Kimmel over a joke about him and the First Lady. The FCC, which has not revoked a broadcast license in over 40 years, has now placed every Disney-owned station into renewal proceedings. The agency has demanded that the company prove it meets pretty vague standards and also gets to evaluate whether the company has met those standards. Whether or not the licenses are ultimately revoked, a three-year early renewal proceeding itself is the punishment, both in compliance costs and in its goal to chill speech that ABC airs.

Meanwhile, Paramount paid 16 million to settle a lawsuit Trump brought over how CBS edited a 60 Minutes interview with Kamala Harris. Paramount was careful to note that the money goes to a future presidential library and that the deal involved no apology, and it even called the lawsuit meritless. But Paramount reached this settlement deal while it was awaiting the administration’s approval of its merger with Skydance. Whether this settlement was truly coerced can never be fully answered under a standard First Amendment framework, since all the decisions, the surrounding government pressure, and the ultimate changes in the behavior of the speakers involved are all connected. But none of this can really be proven in a court of law.

Columbia University paid the federal government $221 million to resolve federal investigations and unfreeze its research funding. In addition, Cornell paid $60 million, Northwestern paid $75 million, Brown paid $50 million. Harvard, which fought back in court, currently has $2.7 billion in frozen funding, an appeal pending, threats to its tax-exempt status, repeated efforts to bar it from enrolling international students, and a swarm of investigations that the university says it fears could lead to criminal referrals. The cumulative effect on what universities feel free to teach, hire, and say is impossible to quantify and impossible to miss.

None of these actions constituted a direct prohibition on speech. The First Amendment, on paper and in the courtroom, is exactly the document it was a year ago. What changed is that the government learned how to make speaking expensive. It does not need to ban speech if it can make the price of speech so high for certain institutions that they would rather placate, self-censor, or even pay up in large settlements rather than challenge in court.

This is what I call the First Amendment Tax. So far, I’ve identified five regulatory instruments the government deploys to indirectly suppress speech using this new tactic.

The government can make speech expensive through its control of regulatory approvals such as broadcast licenses, merger clearances, spectrum allocations; through its visa authority over the foreign scholars, journalists, and employees that universities and newsrooms and think tanks depend on; through withholding of federal funding, which underwrites most American research and a substantial share of nonprofit work; by threatening the tax exempt status that lets nonprofits exist; and through the power to designate organizations as connected to terrorism, which can destroy reputations and freeze bank accounts before any court rules on anything.

When these instruments are deployed selectively and in a coordinated fashion against speakers and viewpoints the administration disfavors, the First Amendment Tax kicks in. These tools stop functioning as your run-of-the-mill government regulation and become the price you have to pay for your speech. The result: speech and expression in the United States still have the highest legal protections in the world. But engaging in free speech that the government doesn’t like has become far more expensive.

Americans tend to assume this kind of thing only happens in autocratic states. That it has happened repeatedly in those countries should worry us all about the state of free speech in the United States.

Under Viktor Orbán, Hungary made it financially irrational for opposition media to operate through selective regulatory pressure, tax treatment, and the withdrawal of state advertising. Turkey weaponized tax authorities, broadcast regulators, and criminal defamation statutes until the cost of critical coverage exceeded what most outlets could absorb, suppressing independent journalism. India has used income tax raids and restrictions on foreign funding against critical NGOs and media. The global free speech recession over the past decade has frequently been driven by exactly this kind of administrative pricing.

The First Amendment tax is the American version of this global pattern. The current administration uses existing regulatory authority, applies it selectively to people the president has identified as adversaries, and lets the cost of resistance do the work that the law forbids it to do directly.

The First Amendment’s most powerful tools, the ones taught in law schools and invoked in litigation, were designed for a government that comes at speech directly — a law that can be struck down or an injunction. Each individual regulatory action has its own facially neutral justification, reviewed under its own deferential standard, by a court examining only that single action. This is not a problem we can litigate our way out of one piece at a time. It requires recognizing these actions as part of a pattern. Fortunately, there is some history from which we can draw inspiration. .

In 1963, in a case called Bantam Books v. Sullivan, the Supreme Court struck down a Rhode Island commission that had been sending letters to book distributors flagging titles it found objectionable. The Supreme Court held it was an unconstitutional prior restraint. The RI commission never formally banned anything, but instead relied on implied threats to chill speech. The Court called the pressure itself unconstitutional. The point isn’t that these taxes fall outside of the First Amendment, but that they exist because the nature of government pressure and power often forces speakers to settle and self-censor even if they would win in court.

The pattern occurring right now under the current administration deserves to be named and operationalized so we can recognize it when it arises. Until we can identify these indirect forms of censorship as the First Amendment Tax, each individual application of it gets explained away as an isolated regulatory dispute, a one-off, or an unfortunate compliance matter. With this framework, it becomes easy to see the law firm that paid, the university that settled, the scholar or activist that left the country, and the woman in Florida who opened her door to find police standing outside, as parts of a single coordinated phenomenon.

It’s no accident that a common trope in books and fairy tales is that the villain’s name is often kept secret and feared. But it often loses power when it’s said out loud. Now that we can name the First Amendment Tax for what it is, free speech advocates can do what it takes to fix it.

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Ashkhen Kazaryan is a Senior Legal Fellow at The Future of Free Speech, where she leads initiatives to protect free expression and shape policies that uphold the First Amendment in the digital age.